United States District Court, W.D. Washington
ORDER GRANTING MOTIONS TO DISMISS
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Swinomish Indian Tribal
Community's, Port Gamble and Jamestown S'Klallam
Tribes', and Tulalip Tribe's Motion to Dismiss under
Federal Rule of Civil Procedure 12(b)(1) (Dkt. #25), and the
Suquamish Indian Tribe's Motion to Dismiss (Dkt. #27), in
which the Squaxin Island Tribe and the Puyallup Tribe of
Indians have also joined (Dkts. #28 and #29) (hereinafter
collectively the “Moving Tribes”). The
Muckleshoot Tribe opposes the motion (Dkt. #31), and the
Nisqually Indian Tribe has joined in that opposition (Dkt.
#33). The Moving Tribes assert that this Court lacks
jurisdiction to hear this matter under Paragraph 25(a)(6) of
the Order Modifying Paragraph 25 of the Permanent Injunction,
entered on August 24, 1993, because the Muckleshoot
Tribe's marine usual and accustomed fishing grounds and
stations (“U&A”) has already been
specifically determined, and because the Muckleshoot asserted
a contrary position to that advanced now in a prior
subproceeding in which it succeeded. Dkts. #25, #27, #28 and
#29. The Muckleshoot oppose the motion on the basis that the
marine U&A asserted now has never been determined. Dkt.
#31. The Nisqually, while not joining any substantive claims
to the U&A, concurs with the procedural arguments made by
the Muckleshoot with respect to its ability to invoke
Paragraph 26(a)(6) jurisdiction. Dkt. #33. For the reasons
discussed herein, the Court agrees with the Moving Tribes,
and hereby DISMISSES this subproceeding.
case arises from a Request For Determination
(“RFD”) brought by the Muckleshoot Indian Tribe,
in which it seeks a determination that the Tribe's
U&A under the Treaties of Point Elliott and Medicine
Creek includes additional locations in the saltwater of Puget
Sound not determined in earlier proceedings in this action.
Dkt. #3. The Muckleshoot invoke jurisdiction under Paragraph
25(a)(6) of the Order Modifying Paragraph 25 of Permanent
Injunction, entered in this action on August 24, 1993, which
provides in relevant part that a party “may invoke the
continuing jurisdiction of this court in order to determine .
. . [t] he location of any of a tribe's usual and
accustomed fishing grounds not specifically determined by
Final Decision #1. Dkt. #3 at 2.
the United States, as trustee for all the treaty tribes,
filed suit in the Western District of Washington to obtain an
interpretation of the Treaty of Point Elliott and an
injunction protecting treaty fishing rights from interference
by Washington State. In 1974, Judge Boldt issued extensive
findings of fact, conclusions of law, and a permanent
injunction. United States v. Washington, 384 F.Supp.
312 (W.D. Wash. 1974) (“Boldt Decree”). The Boldt
Decree defined the Treaty of Point Elliott's reference to
“usual and accustomed grounds and stations” as
meaning “every fishing location where members of a
tribe customarily fished from time to time at and before
treaty times, however distant from the then usual habitat of
the tribe, and whether or not other tribes then also fished
in the same waters[.]” Id. at 332.
U&A of the Muckleshoot was described by Judge Boldt in
Findings of Fact (“FF”) 76 his decision:
Prior to and during treaty times, the Indian ancestors of the
present day Muckleshoot Indians had usual and accustomed
fishing places primarily at locations on the upper Puyallup,
the Carbon, Stuck, White, Green, Cedar and Black Rivers, the
tributaries to these rivers (including Soos Creek, Burns
Creek and Newaukum Creek) and Lake Washington, and
secondarily in the saltwater of Puget Sound. Villages and
weir sites were often located together. [FPTO § 3-53;
Ex. USA-20, p. 38; Ex. USA 27b, pp. 7-16; Ex. PL-23, pp.
384 F.Supp. at 312, 367 (W.D. Wash. 1974), FF 76
(“Decision I ”).
January 11, 1997, the Puyallup Tribe sought a determination
that the Muckleshoot had “no adjudicated usual and
accustomed fishing grounds and stations in marine waters
outside Elliot Bay.” Case No. 97-sp-00001RSM
(originally brought before Judge Barbara Rothstein), Dkt. #1
at ¶ 1. The Puyallup sought to “bar any fisheries
by the Muckleshoot Tribe in the waters surrounding Vashon
Island, now known as WDFW Commercial Salmon Management and
Catch Reporting Area 11.” Id. The Puyallup
then immediately moved for a preliminary injunction.
Id., Dkt. #4. In response to the motion, the
Suquamish and the Swinomish Tribes agreed with the Puyallup
that the Muckleshoot had no adjudicated U&A around the
islands of Central and South Puget Sound, and argued that
Judge Boldt's Finding of Fact 76 that Muckleshoot had
U&A “secondarily in the saltwater of Puget
Sound” was ambiguous and that Judge Boldt never
intended to establish Muckleshoot U&A “in the
saltwater, far from the upriver haunts of the Muckleshoot
forbears.” Case No. 97-sp-00001RSM, Dkt. #22 at 2-8.
See also id, Dkt. #24. The Puyallup then withdrew
Swinomish and Suquamish next filed a cross-request for
determination seeking, like the Puyallup, a finding that
Muckleshoot marine U&A was “very limited.”
Id., Dkt. #30. Specifically, the Tribes asserted
that the Muckleshoot had no adjudicated U&A “in
Washington Marine Catch Reporting Area 10 or waters west and
north of Area 10.” Id., Dkt. #36 at ¶ 1.
January 15, 1998, Muckleshoot filed a motion to dismiss the
requests for determination, arguing that Judge Boldt had
issued an unambiguous finding in his initial decision, and
that the Requests for Determination (“RFD”) were
barred by the doctrine of res judicata. Id., Dkt.
#47 at 1. Further, Muckleshoot argued that the RFDs did not
fall within this Court's continuing jurisdiction.
Id. Muckleshoot “took issue” with the
petitioners' arguments that there was ambiguity with
Judge Boldt's term “Puget Sound” as applied
to areas 11, 10, 10E, 9, 8 and 8A of Puget Sound.
Id. at 2. Muckleshoot argued that the Court was
limited in its authority to clarify Judge Boldt's
findings, and that petitioners were merely seeking a
redetermination of the term “Puget Sound” which
was unambiguous as to the waters at issue. Id. at
2-17. Finally, Muckleshoot argued that the Court did not have
continuing jurisdiction under Paragraph 25(a)(6) because the
U&A had been specifically determined by Judge Boldt.
Id. at 17. The Swinomish, Suquamish and Puyallup
Tribes responded with a Motion for Summary Judgment,
asserting that finding of fact 76 was ambiguous and that the
Court had jurisdiction to clarify that Muckleshoot had no
U&A beyond Elliot Bay. Dkt. #50.
those motions were pending, the Ninth Circuit Court of
Appeals issued it decision in Muckleshoot Tribe v. Lummi
Indian Tribe, 141 F.3d 1355 (1998) (Muckleshoot
I). In that case, relevant to ...